| Verde Elec. Corp. v Federal Ins. Co. |
| 2008 NY Slip Op 02994 [50 AD3d 672] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Verde Electric Corporation, Respondent, v FederalInsurance Company, Appellant, et al., Defendants. |
—[*1] Andrew Greene & Associates, P.C., White Plains, N.Y. (Daniel Felber of counsel), forrespondent.
In an action, inter alia, to recover on a payment bond issued pursuant to State Finance Law§ 137, the defendant Federal Insurance Company appeals from an order of the SupremeCourt, Westchester County (Scheinkman, J.), dated September 12, 2007, which denied its motionto vacate a clerk's judgment of the same court dated May 31, 2007, entered upon its default inappearing and answering the complaint, and, in effect, to compel the plaintiff to accept itsanswer.
Ordered that the order is reversed, on the law, the facts, and in the exercise of discretion,with costs, the motion of the defendant Federal Insurance Company to vacate the clerk'sjudgment and, in effect, to compel the plaintiff to accept its answer is granted, the clerk'sjudgment is vacated, and the answer of the defendant Federal Insurance Company is deemedtimely served.
A defendant seeking to vacate a judgment, including a clerk's judgment, entered upon itsdefault in appearing and answering the complaint must demonstrate a reasonable excuse for itsdelay in appearing and answering, and a meritorious defense to the action (see CPLR5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141[1986]). Here, the defendant Federal Insurance Company (hereinafter Federal Insurance)demonstrated a reasonable excuse for the short period of time in which it failed either to appearor answer the complaint (cf. CPLR 2005). Federal Insurance also demonstrated that it hada potentially meritorious defense (cf. Palcon Indus. v Travelers Indem. [*2]Co., 114 AD2d 667 [1985]). Moreover, the plaintiff did notdemonstrate prejudice from the relatively short delay in answering, which was not willful, andpublic policy favors the resolution of cases on their merits (see Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522, 523[2006]; Ubaydov v Kenny's FleetMaintenance, Inc., 31 AD3d 536 [2006]). Under these circumstances, the SupremeCourt improvidently exercised its discretion in denying the motion of Federal Insurance to vacatethe clerk's judgment, and, in effect, to compel acceptance of its answer (see CPLR 3012[d]).
Furthermore, Federal Insurance correctly contends that, under the circumstances, the clerkdid not have the authority to enter a clerk's judgment here, as he was only authorized to enter aclerk's judgment if the plaintiff sought to recover a "sum certain" (CPLR 3215 [a]; seeReynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; Ayres Mem. Animal Shelter, Inc. vMontgomery County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904,904-905 [2005]; Gaynor & Bass v Arcadipane, 268 AD2d 296, 297 [2000]; Maxwellv First Port Jefferson Corp., 31 AD2d 813 [1969]; Geer, Du Bois & Co. v Scott & SonsCo., 25 AD2d 423, 423-424 [1966]). This constitutes another basis for the vacatur of theclerk's judgment (see Ayres Mem. Animal Shelter, Inc. v Montgomery County Socy. forPrevention of Cruelty to Animals, 17 AD3d at 905; Gibbs v Hoot Owl Sportsman's Club,257 AD2d 942, 943-944 [1999]; Jannon v Van Buskirk, 227 AD2d 844, 844-845[1996]). Although Federal Insurance only sought vacatur of the clerk's judgment pursuant toCPLR 5015 (a) (1), this Court can entertain an argument made for the first time on appeal where,as here, it presents an issue of law that appears on the face of the record, and could not have beenavoided had it been raised at the proper juncture (see Chrostowski v Chow, 37 AD3d 638, 639 [2007]; Beepat vJames, 303 AD2d 345, 346 [2003]; Hanna v Ford Motor Co., 252 AD2d 478 [1998];cf. White v Weiler, 255 AD2d 952, 952-953 [1998]). Mastro, J.P., Dickerson, Belen andChambers, JJ., concur.